Are such agreements enforceable in all circumstances? What impact do they have on an employee’s ability to bring a claim against his or her employer? Mr. Filoromo explained, “If you have justification to report something to a regulator or the government, then you can generally do that without regard to the agreement... but the question of whether you can bring a claim or recover money as a result of an enforcement action is not as clear.” Depending on the whistleblower law at issue, a release of claims may or may not prevent an employee from receiving a share of what the government recovers from a company that has engaged in wrongdoing.

Mr. Filoromo noted that when individuals are collecting documents for a lawsuit, with whom they share those documents matters. “It is often the case that you can safely share documents with your attorney because you have a confidential, privileged relationship. You are not disseminating the documents in a way that could really damage the company.” However, he added, “[C]ommunications subject to the company’s attorney-client privilege are generally off-limits.”

Mr. Filoromo said, “In the whistleblower context, judges are still working out what is reasonable [when collecting documents].” How the documents were obtained, who they were given to and their content all come into consideration when determining whether an individual’s actions were reasonable and permissible under the law. Courts also consider whether the employee had access to the documents within the normal course of his or her work. As Mr. Filoromo noted, “The government wants information, but doesn’t want employees ransacking their employer’s records.”

Mr. Filoromo also observed that different whistleblower laws provide for varying levels of protection for disclosing company documents: “Unlike the False Claims Act and many other whistleblower laws, there is a specific rule under Dodd-Frank saying that [employers] can’t impede a whistleblower from making a report to the SEC, including...by enforcing a confidentiality agreement.” Mr. Filoromo concluded, “Though there aren't analogous provisions in...other laws, there are the exceptions I mentioned for making reasonable disclosures to law enforcement of evidence of wrongdoing.”